Legal Studies - Unit 4 AOS1

The Crown

The Crown

The Governor-General represents the Crown, and has the role of granting Royal assent to legislation.

Royal Assent

Royal Assent is when the Queen’s representative signs the Bill, and gives it approval on behalf of the Queen.

• This then turns the Bill into a law.

Separation of Powers

The separation of powers divides the institutions of government into legislative, executive, and judicial functions.

• This helps to prevent the abuse of power by parliament, as no single institution has absolute power.

Legislative Power

Legislative power refers to the power to make laws, which resides with the government.

Executive Power

Executive power refers to the power to implement and administer laws, which is given to the Governor-General.

Judicial Power

Judicial power refers to the power to enforce the law and settle disputes, which is given to the Courts.

Separation of Powers acts as a check on law-making powers

• The separation of powers ensures no single institution has absolute power, which prevents the abuse of power by parliament.

• The judiciary power is independent, and ensures judges act impartially when interpreting and applying the law.

Separation of Powers does not act as a check on law-making powers

• The legislative and executive powers can overlap since government can be a part of parliament, resulting in a lack of scrutiny of laws.

• The judges who form the judiciary are appointed by the government, which can result in public perception of a lack of independence of the judiciary.

Ultimately, the separation of powers acts as a check on commonwealth parliament law making powers to a high extent, as it ensures there is no absolute power since the executive and judicial powers limit this.

Bicameral

Bicameral refers to a parliament that has two houses. In the Commonwealth Parliament, the lower house is the House of Representatives and the upper house is the Senate. The bicameral structure also includes the Crown, which is the Governor-General.

Bicameral Structure

• A feature is that in order for a law to be made, a BIll has to be passed through both houses and signed by the Governor-General

• Another feature is that the Senate serves a house of review to the Bills proposed by the House of Representatives

Representative Government

Representative government requires that members of the Senate and House of Representatives are directly chosen by the people.

Bicameral Structure upholding Representative Government

• The bicameral structure ensures that the government reflects the values of the public, and prevents the abuse of power by making them accountable to people at regular elections.

• The bicameral structure allows law-making to be shared, which safeguards against a single house implementing legislation that does not represent the values of the community.

Section 80 – Express Right

Section 80 of the Constitution guarantees the right to a trial by jury for offences under Commonwealth law that are indictable.

Express Rights

Express rights are clearly stated or entrenched in the Australian Constitution. They cannot be changed or removed without a referendum, and parliament cannot pass legislation that breaches these rights.

Right to Trial by Jury

The right to trial by jury for Commonwealth indictable offences ensures that the verdict will be determined by a jury of peers rather than government officials, which acts as a check against the abuse of power by government.

Limits of the Right to Trial by Jury

• The right is limited to Commonwealth offences only, and does not apply to defendants charged with state offences.

• The Commonwealth can also determine whether a crime is indictable or not, which means they could avoid the protection of the right.

Overall, since express rights cannot be removed from the Constitution, they act as a check on the law-making powers of government to a high extent.

The change to the Commonwealth Electoral Act

Before the amendment, only prisoners serving more than 3 years were banned from voting. However, the amendment resulted in the disqualification of all prisoners from voting.

How the Change affected the Constitution & Prisoners

This breached sections 7 and 24 of the Constitution and infringed the requirement for a representative government. Due to the high number of Indigenous prisoners, this amendment caused disadvantage to Indigenous voters.

Double Majority

A double majority means that a referendum can only be successful if the majority of electors nationally vote yes, and if majority of the voters in 4 /6 states also say yes.

1967 Referendum

A successful referendum was the 1967 referendum, which allowed the Commonwealth to create special laws for the benefit of Aboriginal people and include them in the census.

Double Majority acts as a check on legislative power

The double majority requirement is an effective check on the legislative power of Commonwealth parliament, as it prevents parliament from changing the Constitution for its own benefit, since the double majority requires support from the Australian public.

Double majority does not act as a check on legislative power

• The Australian public may not understand the complexity of the proposed change, which can hinder parliament’s legislative power.

Ultimately, the double majority requirement is difficult to achieve, which can be useful in preventing parliamentary abuse of power.

High Court acts as a check on parliament’s law-making powers

The High Court held that the requirement of representative government in sections 7 and 24 of the Constitution indirectly protected the right of prisoners to vote.

• This is significant because it limits parliament’s ability to make laws restricting people’s right to vote.

High Court does not act as a check on parliament’s law-making powers

• The High Court can only interpret the Constitution and decide the validity of a commonwealth law if a case is initiated by a person.

• High Court justices may be more conservative in their interpretation of the Constitution, and reluctant to make changes, which restricts the High Court’s ability to act as a check on the law-making powers of parliament.

Overall, the High Court acts as a check on parliament’s law-making powers to a high extent, as they protect the rights of people and prevent abuses of power, as demonstrated in the Roach case.